## Facts

- Edward J. Kilberg, a New York resident, bought an airline ticket in New York for travel to Nantucket, Massachusetts.
- In August 1958, the Northeast Airlines flight crashed in Nantucket, and Kilberg died.
- Massachusetts’ wrongful-death statute provided a cause of action against a common carrier but capped damages at $15,000.
- New York’s wrongful-death statute did not cap damages.
- The estate sued Northeast Airlines, including (1) a wrongful-death claim under Massachusetts law and (2) a purported New York breach-of-contract claim alleging the carrier breached its contract to transport the passenger safely, seeking damages exceeding the Massachusetts cap.

## Issues

1. Whether a decedent’s estate may plead a separate New York contract claim for a passenger’s death to avoid the statutory limits applicable to a wrongful-death claim arising from an out-of-state crash.
2. Whether a New York court entertaining a wrongful-death action created by Massachusetts law must apply Massachusetts’ statutory cap on damages, or may refuse to apply the cap as contrary to New York public policy.

## Decision

- The court affirmed dismissal of the breach-of-contract cause of action as insufficient.
- The court held that a passenger’s death gives rise to a wrongful-death claim only by statute, and the governing statute is that of the place of the wrong (Massachusetts).
- The court held that, although the estate must proceed under the Massachusetts wrongful-death statute, New York would not enforce Massachusetts’ $15,000 damages cap in its courts.
- The court treated the measure of damages as remedial/procedural for the forum and applied New York’s policy against wrongful-death damage limitations, noting the often chance location of airline crashes.

## Legal Principles

- Wrongful-death liability is purely statutory; when death results, a plaintiff cannot convert the claim into breach of contract to expand or alter the statutory remedy.
- The existence and basic right of action for wrongful death are governed by the law of the place where the fatal injury occurred.
- A forum may refuse to apply a foreign wrongful-death damages limitation when the limitation conflicts with a strong forum public policy.
- A forum may characterize the measure of damages as remedial/procedural and apply forum law to damages, even while applying foreign law to the creation of the cause of action.

## Conclusion

The court rejected a contract-based pleading strategy to avoid the statutory nature of wrongful-death claims, requiring suit under Massachusetts law, but it declined to enforce Massachusetts’ damages cap in New York because New York policy barred such limitations and the crash location was treated as an arbitrary basis for limiting recovery.


Kilberg v. N.E. Airlines, Inc., 9 N.Y.2d 34 (N.Y. 1961)